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8 Tips for Assisting Self-Represented Litigants

Christina Wright, June 24th, 2024

Working in the Kane County Eviction Mediation Program for the past three years, I have seen firsthand the challenges self-represented litigants may face. I have also learned a lot by reading RSI’s research on related topics, such as the ODR Party Engagement (OPEN) Project. Recently, I had a chance to speak to members of the Illinois Supreme Court Access to Justice Court Navigator Network at the Kane County Law Library in Geneva, Illinois, about tips I’ve found useful in supporting these litigants. I am sharing them below with the hope that they will be useful to others.

***Photo by*** **Edmond Dantes via Pexels**

1. Speak and write in plain English.

For native speakers as well as those for whom it is a second language, English can be a difficult language to master. Many self-represented litigants don’t have the language skills to understand the legalese that is often used in the courtroom. Thus, it is important that all court-related communications be written in plain English. Additionally, court-connected mediation programs and other settings involving self-represented litigants should have a staff member accessible to answer questions regarding court/program handouts and policies.

2. Provide translation.

Any paperwork should be readily available in commonly used languages other than English. In Kane County, our primary need is Spanish, but that will vary by jurisdiction. Translation services should also be provided as needed.

3. Be clear that outcomes are not predictable.

To avoid making promises you can’t keep, be sure to use language that does not promise a particular outcome. For instance, one could say “You may apply for a court fee waiver,” rather than “You can get your court fees waived.” This important distinction can prevent confusion down the line as the individual continues to navigate the court/program.

4. Be flexible with scheduling.

Courts/programs can be difficult to access for those who live near or below the poverty line and/or who have inflexible work schedules. For self-represented litigants with little or no income, it may be impossible to physically attend court or afford the devices necessary to attend court virtually. Buses, ride-hailing services and even bicycles cost money and can be time-consuming to use. Being flexible with scheduling allows participants a greater chance of attending, and without the extra burden of costs associated with travel, childcare, calling off work, etc.

5. Be knowledgeable about available resources.

Inability to use technology is another hurdle. Whether it be because the individual lacks the skills or the finances to utilize technology, online dispute resolution (ODR) programs and virtual court may only be an option with extra assistance from the court/program. Extra assistance may come in the form of lending a device, walking the self-represented litigant through connection issues, or referring them to another agency that can help get them connected. Libraries are a great resource for technology assistance and connection.

6. Keep an open mind.

Don’t assume you know anything about any particular self-represented litigant’s life, capabilities, technology access, education, finances, etc. What may seem simple or common to you may not even be an option for them. With that said, self-represented litigants come from all different walks of life, so it is even more important not to assume they are all alike and thus all have the same needs.

7. Be persistent when reaching out to parties.

How do you reach a self-represented litigant? Keep trying! The Kane County Eviction Mediation Program uses phone, text, email and in-person conversations to gather information and assist self-represented litigants face their legal challenges. Everyone has their own preferred communication method, so it takes different forms of communication to reach different people. Attempt contact frequently and through a variety of methods if you really want to reach the individual.

8. Be trustworthy.

Finally, the OPEN Project found that trust can be a big obstacle for courts. OPEN focus group participants were wary of the communications they reviewed. Thus, it is important that all court communications look official and provide solid contact information in case the self-represented litigant needs to ask questions or contact the court/program for other reasons.

Although there can be challenges when working with self-represented litigants, the individual parties can benefit greatly from the support. Mediation and similar programs can provide clarity, control, support, legal assistance, financial resources, housing counseling and other resources to self-represented litigants. They can decrease the amount of time a case remains in court (a benefit to everyone involved) and prevent unnecessary wage losses. Self-represented litigants may need regular reinforcement and assurance, but by providing this service we increase their access to justice.

Tags: access to justice, pro se, Self-represented litigants, SRL
Posted in Court Mediation Program, Diversity and Inclusion, Eviction Mediation, Program Design, Program Management, Training, Skills & Techniques | No Comments »

New Board Member Nancy Welsh Discusses Fairness, Self-Determination in ADR

Just Court ADR, May 10th, 2024

In February, Resolution Systems Institute welcomed two new Board of Directors members to their first RSI board meeting. Recently we wrote a blog introducing you to one of them, University of Denver Law Professor Oladeji M. Tiamiyu. For this edition, we spoke with the other, Texas A&M Law Professor Nancy A. Welsh.

Nancy Welsh is a member of the Board of Directors of Resolution Systems Institute

Nancy Welsh is the Frank W. Elliott, Jr. University Professor, Professor of Law and Director of the Dispute Resolution Program at Texas A&M University School of Law. She is a leading scholar and teacher of dispute resolution and procedural law. Prof. Welsh examines negotiation, mediation, arbitration, judicial settlement and dispute resolution in US and international contexts, focusing on self-determination, procedural justice, due process and institutionalization dynamics. Read more about Prof. Welsh’s background and find links to her work in her RSI bio.

When/where were you first introduced to alternative dispute resolution?

I first learned about alternative dispute resolution when I was in law school. Frank Sander — one of the founders of the ADR movement (including the contemporary mediation movement) — was one of my law professors. He taught a course that I believe was called Alternatives to Litigation. That was where I first learned about mediation. I’m sure we also covered arbitration, but negotiation principles and mediation are what I remember best. I actually enjoyed the exam in that course — an unusual experience! — because we needed to think about what the parties wanted and what their underlying interests likely were. We also needed to think practically when different alternatives existed that might be responsive to their underlying interests. I found the problem-solving aspect of the course to be really exciting.

I also had the opportunity to take a mediation training when I was in law school and then to mediate in a small claims court.

What are some of the big questions related to ADR that interest you or that you are currently focusing on?

I’ve always been interested in the intersection between negotiation, mediation, arbitration and the courts, which, of course, is where RSI largely is located. I have been a big advocate of negotiation, mediation and arbitration when the parties have actually selected these processes, and when the processes have been managed in a manner that helps to ensure that people really have the opportunity to think and share what they care about, to think about what options might exist for resolution, to be fully informed, and to freely make their choices.

One thing that really excited me about negotiation and mediation was that it seemed as though — especially once you started asking about and looking at underlying interests — a whole new path to resolution opened up. I had gotten to a point where it seemed to me that when we were talking about the law, there was no path; there were only positions and legal arguments.

So when people are choosing negotiation or mediation, when they really have the opportunity to be informed and to explore what other options exist that can be responsive to their needs, I am entirely in favor of these processes.

When the mediation process is one in which mediators or lawyers decide that the parties are never going to be in direct contact with each other — putting them in separate rooms and with the mediator just shuttling back and forth — and when the focus of mediation is primarily on getting the parties to be more realistic in the way that the mediators and lawyers want them to be, I am less enthusiastic about the processes. Some reality-testing is almost inevitable, but the mediation process also should provide the opportunity for the parties to express what is really important to them, to be heard in a dignified setting, and to explore options that meet their needs. I care a lot about procedural justice and self-determination and have written extensively on both.

Importantly, we really don’t know what happens in most mediations. The courts don’t regularly collect or publish such data. Again, this is a world in which RSI operates; RSI has been involved in much more research and evaluation than a lot of organizations and encourages court-connected programs to evaluate and collect data. That is really important. How can you know what is going on if you don’t have any information?

Meanwhile, I know that a lot of the data we do have indicates that people are satisfied with the mediation process. So that’s important. I just think the process can be one that enables people to fully exercise self-determination consistent with the American ideal of democracy, that each of us is a thinking human being who can be educated and make good decisions. And then, of course, we also need data regarding the other dispute resolution processes.

What in your current academic work, if anything, relates to the work of RSI?

My academic work relates to RSI’s work because RSI does so much with data and evaluation, and a lot of my writing has been about mediation and court-connected processes, which are obviously core areas for RSI.

I wrote a series of articles (one of which is “But Is it Good: The Need to Measure, Assess, and Report on Court-Connected ADR”) that focus largely on the need for more data, for regular reporting by the courts regarding their use of dispute resolution processes. How many cases were eligible? How many cases actually went to these dispute resolution processes? Did they settle? On what terms? What were parties’ perceptions of the procedures and outcomes? And then I also have urged that courts have some responsibility to ensure substantive fairness in the aggregate, or at least some responsibility to ensure that there is not a systemic pattern of unfairness in outcomes.

What attracted you to/made you want to join the RSI board?

I have thought for a long time that RSI is a really wonderful organization and it’s doing important work. When I identify who is out there focusing on court-connected dispute resolution, helping to ensure that research is being done and that courts are getting the kind of assistance they need to provide good court-connected dispute resolution processes, RSI has been at the center of it. Jen Shack is a wonder. Susan Yates is a wonder.

What are you most looking forward to during your time on the RSI board?

I think there are amazing people who are involved with RSI, so I’m looking forward to getting to know the staff and the board. I’m excited to be working with people on the board — some of whom I’ve known and respected for a long time, and others whom I’ve known by reputation but have never before met. It’s an honor to join them.

Tags: access to justice, ADR, court adr, fairness, mediation, self-determination
Posted in Program Design, Program Management, RSI Board of Directors, RSI News, Welcome | No Comments »

Better Forms Can Help Reduce Fear and Confusion for Self-Represented Parties

Christina Wright, February 21st, 2024

In an eviction courtroom filled mostly with self-represented defendants, the confusion and fear can be palpable: fear over what the future holds, and confusion about the process and the parties’ options.

But some of this anxiety can be mitigated. Represented or not, parties should always have access to the information they need to understand what is happening in their court case. One way to help reduce the confusion and fear is to provide easily accessible court forms with instructions in plain language.

A small group of individuals is working toward precisely this goal, and recently I began volunteering with them.

Hands hold a pen and a nondescript form.

When forms are understood and completed correctly, the court process is smoother, time is used more efficiently, and there is less risk of legal errors that might compromise a case on behalf of self-represented litigants.

In 2012, the Illinois Supreme Court created the Illinois Supreme Court Commission on Access to Justice (Commission) to “promote, facilitate and enhance equal access to justice with an emphasis on access to the Illinois civil courts and administrative agencies for all people, particularly the poor and vulnerable.” The same year, the court adopted an administrative order spelling out how the Commission and the Administrative Office of the Illinois Courts (AOIC) would be tasked with developing, reviewing and approving standardized court forms for the entire state.

The Forms Committee currently has 13 drafting subcommittees, which consist of judges, attorneys, clerks and other court stakeholders — such as RSI and me — who help create new forms when needed and update existing forms in an annual process, according to Lillie Schneyer, Forms Program Coordinator with the AOIC.

“Annual review is an important process to ensure that the forms are up to date with the latest court processes, are as user-friendly and effective as possible, and remain legally sufficient,” Schneyer explains.

Over the past few months, I have been working with the Eviction Subcommittee to revamp the forms provided to people involved in eviction cases. We are reviewing current documents, such as the Eviction Order, Appearance and Agreed Order forms, that have received comments and suggestions from members of the public or that members of the subcommittee have comments or questions about. (Draft forms are posted for public comment on this page of the Illinois courts site.)

We work together as a small group to adjust language, instructions, spacing, and any other minute detail that has been brought to our attention. Our overarching goal is to make the forms as simple and accessible as possible, with the hope that any self-represented party can maneuver them, while also ensuring that the language used is legally responsible and applicable.

We work together as a small group to adjust language, instructions, spacing, and any other minute detail that has been brought to our attention as in need of revamping. We analyze the law in reference to the language to be used on the forms and the implications of the changes we are making. Our overarching goal is to make the forms as simple and accessible as possible, with the hope that any self-represented party can maneuver them, while also ensuring that the language used is legally responsible and applicable.

The process can be tedious, but having seen eviction cases play out in my role with RSI, I recognize how important it is for all parties to fully grasp what they can expect from the court, what is expected of them, and the options in front of them so they can make informed choices. The forms guide and educate litigants in their options and legal responsibilities. When forms are understood and completed correctly, the court process is smoother, time is used more efficiently, and there is less risk of legal errors that might compromise a case on behalf of self-represented litigants. All in all, having accessible Supreme Court forms benefits both the self-represented litigants and the court itself.

When our work is complete, the revised forms will be published in the Court Forms Hub of the Illinois Courts website.

Tags: access to justice, court programs, mediation
Posted in Accessibility, Court Mediation Program, Diversity and Inclusion, Eviction Mediation, Program Management | No Comments »

Ten Tips for Evaluating Your ODR Program

Jennifer Shack, May 18th, 2023

After Donna Shestowsky and I completed two of the nation’s first neutral evaluations of state court online dispute resolution (ODR) programs, we had some thoughts to share with courts about how they could best ensure the evaluations of their ODR programs were useful and of high quality, so we wrote an article, “Ten Tips for Getting the Most Out of an Evaluation of Your ODR Program,” which was recently published in Court Review, the journal of the American Judges Association. The following is a summary of what we wrote. For more complete guidance, see the complete article.

Tip 1: Negotiate data access when contracting with an ODR provider

RSI Director of Research Jennifer Shack, second from left, and University of California Davis Professor Donna Shestowsky, second from right, are the authors of “Ten Tips for Getting the Most Out of an Evaluation of Your ODR Program.” They joined Nick White, Research & Evaluation Director of the Maryland Judiciary’s Mediation and Conflict Resolution Office, and Dr. Deborah Goldfarb, Assistant Professor at Florida International University, on a panel at the American Bar Association Section of Dispute Resolution Spring Conference.

The best time to ensure you will have the data needed for a future evaluation, and to monitor program activity in general, is when you negotiate your contract with an ODR provider. As you screen providers, learn how each ensures data security and confidentiality. This is also the ideal time to negotiate data access for your evaluation. To keep your evaluation options open, you will want to secure terms that obligate the provider to share data not only with you, but with external evaluators you might hire later. And whether you hire a provider or develop an ODR platform in-house, be mindful of any data sharing or confidentiality rules or policies in your jurisdiction for the types of cases you plan to include in your evaluation.

Tip 2: Determine when to evaluate

Ideally, you would plan the evaluation of your ODR program as you design your program. But evaluation planning can happen at any time, as can the evaluation itself.

If you plan your evaluation before launching your program, you can increase the probability that the evaluation will accurately reflect your program’s use and effectiveness if you begin your evaluation after 1) the provider has addressed technology glitches that may emerge during early testing of your platform and 2) after you conduct outreach to ensure parties know about your program. If your program is already up and running, you should avoid scheduling an evaluation for a time frame when major changes are planned for your court or the ODR program itself. Significant changes while data are being collected may introduce noise into the data.

Tip 3: Find a neutral evaluator

Selecting a neutral evaluator is important for enhancing the quality, usefulness and credibility of your evaluation. In choosing your evaluator, consider whether they have experience evaluating court alternative dispute resolution (ADR) and/or ODR programs. If you hire someone who is not knowledgeable about ADR, be prepared to spend a lot of time explaining how ADR works, the theory behind it, and the specific issues involved.

Tip 4: Ensure that key personnel are involved in the evaluation planning process

Include court personnel who have knowledge that can assist with evaluation planning. These individuals are, at minimum, judges hearing the cases served by the ODR program and court staff who understand the processes involved and the underlying technology. They can help you determine the questions to answer, identify what data are needed, or work out how to access relevant existing data.

You will also want to decide who should serve as the point of contact for your evaluators. This person will answer the evaluator’s questions and help to obtain data. Staff members should be clear on their role in the evaluation.

Tip 5: Prepare to use data from a variety of sources

To best understand your ODR program, you should obtain information from multiple sources, such as your case management system, the ODR platform and participant surveys. To collect systematic feedback from parties (or other stakeholders, such as lawyers), your evaluator will need your help to facilitate distribution of surveys. They will work with you to determine which parties to survey and the best method for contacting the parties. They should also ask you to review the survey questions.

Tip 6: Expect to spend time with the evaluator

To conduct an effective evaluation, your evaluator will need to thoroughly understand your ODR program, how it fits with your overall process for handling cases, and how the platform interfaces with your case management system. Your evaluator will want to spend time with you to discuss your program processes and get answers to any questions throughout the evaluation process.

Tip 7: Facilitate the participation of court personnel and other program partners in the evaluation

Give court personnel and other program partners (e.g., mediators) who were not a part of the evaluation planning process a heads up about the evaluation and ask for their cooperation. Introduce your evaluator to relevant personnel and partners. These efforts should pave the way for your evaluator to reach out to them to get their perspectives on the ODR program and its impact on their work. When asking court personnel and program partners for their cooperation, reassure them that the evaluation’s objective is to improve the program, not to find fault with it or with them.

Tip 8: Help your evaluator to pilot test their survey materials

Before the evaluation period, your evaluator should obtain feedback on their surveys from individuals similar to those who will be surveyed for the evaluation—typically, parties to similar cases. Your evaluator will need your help to gain access to those individuals.

In addition, every court has unique terminology that should be reflected in how questions are worded. Your evaluator should work with your staff to ensure that the correct terminology is used so that it is more likely to be understood by those who will be asked to complete the survey.

Tip 9: Be flexible about the length of time set aside for data collection

The time allocated for data collection needs to be long enough to get the data necessary for analysis, but measured enough to provide timely results. Your evaluator will work with you during the evaluation planning phase to determine the time frame. But be prepared to be flexible. Your evaluator may recommend extending the data collection period if the level of program use and/or survey participation is lower than expected and they need more time to collect data to deliver a useful evaluation.

Tip 10: Survey those who use ODR as well as those who do not

Our evaluations have shown that the motto “If you build it, they will come” does not always apply to ODR. Surveying eligible parties who did not use ODR could help you identify issues that might be driving lower-than-expected usage. Surveys can point to marketing or party education problems, or in the case of voluntary ODR programs, uncover program attributes that parties find unattractive. You can ask parties whether they knew about your program, how and when they learned about it, and whether they knew they were eligible.

In the end, when a court invests resources to establish an ODR program, a major goal is to have it be used. It is imperative to commit resources to effectively market the program, which should include efforts to educate parties and ensure they know they are eligible or required to use it.

Conclusion

Courts that have their ODR programs objectively evaluated should be applauded for their efforts. Evaluations can facilitate program design that is data-driven and evidence-based, rather than guided by anecdotes or hunches. This grounding in data is especially important when making decisions geared toward satisfying the interests of litigants, since understanding their unique perspectives requires collecting data directly from them. Ideally, ODR evaluations will be conducted by neutral third parties who have no stake in the results and meet high research standards. Neutral evaluations are uniquely situated to offer an outside perspective on what works well about a program and to suggest how it might be improved. In addition, constituents, including lawyers, are more likely to accept the findings of a neutral, outside evaluation that concludes that a program delivers beneficial outcomes.

Posted in Evaluation, Online Dispute Resolution, Program Design, Program Evaluation, Program Management, Research | 1 Comment »

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